Reflections, Observations, and Analyses Pertaining to the Canadian Political Scene

Monday, August 14, 2017

UPDATED: A Timely Message

Foreign Affairs Minister Chrystia Freeland continues to treat the Canadian public as children, revealing nothing as to what our country's goals are in the upcoming NAFTA renegotiations. The only peek behind the curtain she is allowing is that they are striving for

provisions to strengthen protections for labour and the environment [and] language that sets out ambitions around gender equality...

While those may be laudable goals, notably absent is the promise to do anything about the horribly flawed Chapter 11 Investor-State Dispute Settlement (ISDS) provisions that The Council of Canadians reminds us

grant private investors from one country the right to sue the government of another country if it introduces new laws, regulations or practices – be they environmental, health or human rights – that cause corporations’ investments to lose money.

Those provisions

- Protect foreign investors, but no one else. Domestic corporations, civil society, unions or governments do not have the same rights to challenge government decisions.
- Cost $4 million on average to defend a case. Chapter 11 cases are heard by three arbitrators, an elite group of investment lawyers who only look at investment issues, behind closed doors.
- Create a public “chill” that may dissuade governments from enacting policy. An in-depth study showed that policymakers will delay or shelve decisions because of the threat of potential ISDS lawsuits.

Canada has faced 38 Chapter 11 ISDS lawsuits – the most amongst the three NAFTA countries. At the moment, Canada faces ISDS lawsuits claiming $2.6 billion in damages. Canada is the most sued country in the developed world because of NAFTA. According to the Canadian Centre for Policy Alternatives, two-thirds of the ISDS lawsuits against Canada are over environmental policies.

Now would seem to be a good time to be reminded of how anti-democratic those provisions are, and how all of Freelands talk about improved environmental standards is just that - talk.

UPDATE: According to CTV News, Freeland has announced that Canada wants improvements to Chapter 11:

Specifically, Freeland referred to Chapter 11 -- which involves companies suing governments. She said she wants reforms so that "governments have an unassailable right to regulate in the public interest." This is not to be confused with Chapter 19, which regulates disputes between companies over dumping, in cases like softwood lumber, and which the U.S. administration might seek to eliminate.

I am heartened to hear this, but will withhold any celebration, as it may only be a motherhood statement that will disappear early in the negotiations.